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Recent employment tribunal sends warning for employers

02/09/2015

A recent tribunal involving a healthcare worker and their employer fires a warning shot for employers to ensure contracts are updated to reflect all changes as soon as they are made, according to Michael Wakeling, employment specialist and partner in Lodders Solicitors’ Dispute Resolution team.

“The tribunal triggers the question ‘Do absent employees still transfer under TUPE?’.

The case involved an employee of Saga Care. Employed as a care worker, she worked on a specific contract held by Saga Care with the London Borough of Enfield.

In February 2013 the employee was suspended on disciplinary grounds and in June 2013 the Borough asked Saga to permanently remove the employee from the contract. Saga disputed the Borough’s instruction and in the meantime, its contract with the Borough expired and the relevant services transferred to another provider, WH Ltd, on 1 July 2013.

The employee claimed unfair dismissal against Saga and WH Ltd. Her primary case was that her employment had transferred under TUPE to WH Ltd.

A tribunal accepted that there was a service provision change (SPC) giving rise to a relevant transfer under the TUPE Regulations. However, it found that, immediately before the transfer, the employee had been removed from the contract at the Borough’s request. At the date of the transfer, the employee was not employed in the organised grouping which carried out the Borough’s contract, and so she did not transfer.

However, the EAT allowed the employee’s appeal, explaining that at the transfer date, Saga had done nothing to actually remove the employee from the transferring group of employees (having opted instead to dispute the Borough’s instruction to permanently remove her from the contract), so she had remained assigned and in turn, transferred, along with the contract, to WH Ltd.

The decision

In reaching its decision, the Tribunal referenced and considered the established legal test applicable to absent employees, who are suspended, sick, on holiday, on study leave or on maternity leave at the date of the transfer. The judgement applied the appropriate test to establish if the employee had been employed to work immediately before the transfer, which it did as this was her contracted place of work.

“The case demonstrates the importance of keeping all employment contracts and details of individual employees up-to-date as soon as circumstances are amended or changed, whatever these circumstances may be.”

For more information on Lodders’ Employment Law services please click here or contact Mike Wakeling in our Stratford upon Avon office on 01789 206102 or drop him an email.

Michael Wakeling

Michael Wakeling, Lodders Solicitors

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